U. S. DEPARTMENT OF LABOR } OFFICE OF STANDARDS, REGULATIONS AND VARIANCES } MINE SAFETY AND HEALTH ADMINISTRATION } AB14-HEAR-TRANSCRIPT-2SS Pages: 1 through 253 AB14-HEAR-TRANSCRIPT-2PV Place: Charleston, West Virginia Date: May 8, 2003 BEFORE THE DEPARTMENT OF LABOR, MINE SAFETY & HEALTH ADMINISTRATION U. S. DEPARTMENT OF LABOR } OFFICE OF STANDARDS, REGULATIONS AND VARIANCES } MINE SAFETY AND HEALTH ADMINISTRATION } Country Inn & Suites by Carlson 105 Alex Lane Charleston, West Virginia Friday, May 8, 2003 The hearing convened, pursuant to the notice, at 8:01 a.m. BEFORE: MARVIN W. NICHOLS, JR. Moderator MEMBERS OF THE COMMITTEE: GERRY FINFINGER JON KUGUT BOB THAXTON LARRY REYNOLDS GEORGE NIEWANDOMSKI SPEAKERS: CECIL ROBERTS JOE MAIN BOLTS WILLIS DONNIE LOWE P R O C E E D I N G S (8:01 a.m.) MR. NICHOLS: Good morning everybody. My name is Marvin Nichols. I'm the director of the Standards Office for MSHA and I want to welcome you all here today at this public meeting and also, on behalf of Dave Lauriski, Assistant Secretary for MSHA, and Dr. John Howard, Director of NIOSH. Today's public meeting is being held to receive your comments on two MSHA regulatory actions. First, we have reopened the record for the comment period on MSHA and NIOSH single-sample proposed rule that was originally published on July 7, 2000. Secondly, we have reproposed the plan verification rule. It was published in the Federal Register on March 6, 2003. Your comments today will be included in the record for both proposed rules. The two proposed rules are based upon the 1996 recommendations of the Secretary of Labor Advisory Committee on the Elimination of Pneumoconiosis and the comments received in response to the previous proposed rule published in 2000. These rules are intended to eliminate Black Lung and pneumoconiosis by eliminating miners overexposure. They completely change the federal program for controlling, detecting and sampling respirable dust in coal mines. The emphasis of the new program will be on verified engineering controls so that miners are protected on every shift. Let me now introduce my colleagues up here. To my left is Bob Thaxton. Bob is the technical advisor with Coal Mine Safety and Health. Next to Bob is Larry Reynolds. Larry is with the Office of the Solicitor and at the end is George Niewandomski. George is the health specialist in Arlington. To my right is Gerry Finfinger. Gerry is the senior physical scientist at the Office of the Associate Director for Mining at NIOSH. He is with us today because, as many of you know, the single-sample rule is a joint effort between MSHA and NIOSH. Now seated next to Gerry is Jon Kogut. John is the statistician with the Office of Program Policy and Evaluation for MSHA. Since the single-sample proposed rule was jointly promulgated by NIOSH and MSHA, we have several NIOSH people here with us today. Let me first let you know how the hearings will be conducted. As with all MSHA hearings, the formal rules of evidence do not apply at these hearings and the hearing will be conducted in an informal manner. Those of you have notified MSHA in advanced will be allowed to make your presentations first. Following these presentations, others who request an opportunity to speak will be allowed to do so. I would ask that all questions regarding these two rules be made on the public record and that you refrain from asking the panel members questions when we're not in session. The reason we do this is we would like for all of the discussion of these rules on the public record. Following the completion of my opening statement, Bob Thaxton will give an overview of the new proposed plan verification rule. A verbatim transcript of this hearing is being taken and it will be made available as part of the official record. Please submit any overheads, slides, tapes and copies of your presentations to me so that these items may also be made part of the record. The hearing transcript, along with all the comments that MSHA had received to date on the proposed rule will be available for review. We intend to post a copy of the transcript on the MSHA website at www.msha.gov. If you wish to obtain a copy of the hearing transcript before then, you should make your own arrangements with the court reporter. We're also accepting written comments and data from any interested party, including those who do not speak here today. You can give written comments to me during the hearing or send them to the address listed in the hearing notice. If you wish to present any written statements or information for the record today, please clearly identify it for us. All written comments and data submitted to MSHA will be included in the written record and we also have an attendance sheet outside that we would like for you to sign if you're willing to do that. Due to the request from the mining community, the agency will extend the post-hearing comment period for the plan verification proposal from June 4th to July 3rd. The notice announcing the extension will be published in the Federal Register soon. We also anticipate extending the comment period for the single-sample rule for the same length of time, but we'll only be able to do that after consultation with NIOSH and we'll also publish that in the Federal Register. As you know, we have four additional hearings scheduled to address these rules. The next hearing will be in Evansville, Indiana on May 13th, in Lexington, Kentucky on May 15th, in Birmingham, Alabama on May 20th and in Grand Junction, Colorado on May 22nd. The hearings will begin at 8:00 a.m. each day and end after the last scheduled speaker. Let me give you some background on the two proposed rules. First, the single-sample proposed rule, which was originally published on July 7, 2000, would allow MSHA to make compliance determinations on single-sample results. The agency would no longer use the averaging method to determine if miners are being overexposed to respirable dust. Averaging can mask individual overexposure by diluting a high sample with a lower sample taken on another shift. Using single-sample measurements rather than averaging multiple samples for compliance purposes will better protect miners health. Single samples can identify and remedy excessive dust conditions more quickly. Single samples measurements have been used for many years by NIOSH and at metal and non-metal mines in this country. In other words, it's been used in all other mines except coal for probably 30 years. MSHA and NIOSH are jointly reopening the rulemaking record for this proposed rule to provide an opportunity for you to comment on the new information in the record concerning MSHA's current enforcement policy, health affects, quantitative risk assessment, technological and economic feasibility and compliance cost, which has been added since July of 2000. For example, we updated the preamble to include the most recent information on the prevalence of Coal Workers Pneumoconiosis, CWP, or Black Lung among coal miners examined under the Miners Choice Program during the period 2000 to 2002. These findings show that miners continue to be at risk of developing CWP under the current dust control program. The quantitative risk assessment is based on additional and more recent data. None of the new information changes the actual finding published in the Federal Register on July 7, 2000. The single-sample issue has been through a long public process, which is outlined in the preamble of the proposed rule. The second regulatory action is the reproposed plan verification rule. This proposed rule supersedes the one published on July 7, 2000. MSHA held three public hearings on the previous proposed rule during August 2000. Many commenters urged the agency to withdraw the earlier proposed rule and go back to the drawing board. Some commenters believes that MSHA had failed to adequately address their concerns, the reforms in the Federal Dust Program recommended by the Dust Advisory Committee, by NIOSH in its criteria documents and reforms urged by coal miners since the mid-1970s. After carefully reviewing all the facts, issues and concerns expressed by commenters, MSHA is proposing a new rule in response to the comments made to the July 7, 2000 proposed rule. Box Thaxton will give us a short overview of the new plan verification rule. And I would ask that you hold your questions for Bob until you come up to offer your comments. We'll let Bob go through this presentation and then we'll take questions as you come up. MR. THAXTON: Okay, what I'm going to try to do is walk through a presentation that walks through both the single sample and plan verification rules. I'll walk through this, and like I said, it is something that we've put together that we've used before. The purpose of our rules and what we're trying to accomplish is what we see here. We've shown Black Lung incidents from 1970 through current 2002. We're showing that there's been a decrease in Black Lung over the years, but that decrease is slow. And you can see from 1995 through 2000, basically, we've stayed about the same, 2.9 and currently, 2.8 percent. That amount or prevalence of disease is unacceptable. That's not what the Act was designed to develop. We wanted to get Black Lung down to where there is essentially no cases. It also shows that the percent of samples that we see that are exceeding the applicable standard of 2 milligrams, has basically bottomed out. We're seeking 12 to 8 percent, really not much change in that. So what we're doing is we want to take a look at that and that was part of the impetus for trying to get these rules out. The rule package itself consist of two particular rules, two separate rules. Those two rules are designed to develop effective plans and control dust and provide for monitoring the effectiveness of those controls. Under single sample, single sample provides for a new finding. That new finding states that the average concentration accurately is measured over a single shift as opposed to measuring the concentration over the average of five shifts as you see currently. It rescinds the 1972 finding that the accuracy of the single sample could not be used. We've added also a new standard in this particular publication that says that the Secretary may use a single full shift measurement to determine the average concentration over that shift. The current verification rule provides that each underground coal miner operator must have a verified ventilation plan. They have to verify the dust control portion of that plan. The plan will be verified under actual mining conditions by mine operator samples. We're going to collect samples at the time that the operator is doing what we consider normal and that is at a higher production level that represent normal conditions. MSHA is going to resume the responsibility for compliance and abatement samples in underground coal mines. Surface mines does not change. And finally, MSHA samples will be used to set all reduced standards due to courts. As it stands right now, you see a combination of MSHA and NIOSH were samples are being used for that purpose. Under this proposal, only MSHA samples will be used. Under the verification of the plan, what we've done is put together a little bit of a comparison of what's currently required under what rules are in place right now versus what this 2003 proposal will do. Under the current rule, MSHA sampling is used to approve a plan. It is based on the average of multiple samples. It's taken with full shift, 8 hour or less portal-to-portal samples and at 60 percent of average production. The 2003 proposed rule -- we will use operator samples to verify the effectiveness of plans in underground mines. And it's only underground mines. Plans at surface mines will still be done the way they are now. Those samples will be collected with full shift production time. That is, the samples will be turned on when a miner reaches the MMU on the section and they will not be turned off until you exit the section. They're taken at higher than average production. And we'll get into actually what that production level is in a minute. They will have to meet separate court and coal mine dust verification limits. These dust control limits and court's limits are set in the rule to get us 95 percent confidence that people are meeting the 2 milligram standard when they're doing the verification sampling. The proposed rule also allows the use of PAPRs or administrative controls on any mining unit only as a supplemental measure after exhausting feasible engineering controls. In relation to the plant, currently, as I said, MSHA's sampling is conducted at 60 percent of average production. There are no records of production required, so basically that is determined either by just talking with miners, talking with mine management or just making a general assessment of what the inspector sees and then they determine 60 percent of that and that determines a valid sample for us. Under the 2003 proposal, plans will be verified using the 10th highest production level in the last 30 shifts. It requires the recording of production and maintaining those records for a period of six months by the mine operator. That is that they have to record actual production on each MMU, that's raw tonnage, coal, rock, whatever produced has to be recorded. What is that 10th highest production? How does it related and why do we think that's going get us better evaluation of the plan? What you've seen in the past is that we've said 60 percent is where MSHA collects samples. What we've got here is an example of longer MMU that's located in Northern West Virginia. Each circle represents a shift of production. These are actual numbers that were collected for 30 shifts. And you can see, based on the 30-shift results, 60 percent of the average brings us down here a little over 3500 tons. The average production for that section was 6295 tons. We were proposing at one time, back early on, that we use 90 percent of average to collect our samples to verify plans. If we use 90 percent of average, we'd only be at about 6600 tons. What we've put in this proposal is that we want the 10th highest production. The 10th highest production puts us at the 67 percentile. What that means is that we've got one third of the shifts in that 30 or above this level and two thirds are below it. So what we're getting as a production is more representative of what we think normal production for that section is. So we're getting samples that are going to be collected at around 7500 tons. So you can see a big difference between what is being proposed as far as the 10th highest versus what we're doing currently, which is the 60 percent level. Use of PAPRs or powered air purifying respirators -- under the current rule, when they're used in conformance with a full respiratory protection program, they can qualify an operator to get a non-S&S designation on any respirable dust over exposure citation. But that's the only thing that they're used at this time. How they can impact the rule. Under the 2003 proposal, they will be permitted when all feasible engineering controls have been exhausted. The key word here is when "all feasible engineering controls have been exhausted." That's a determination that's going to be made by the agency. It's a determination that means that we're going to look -- if there's any feasible controls that available still, the mine operator will be expected to put those in. Only loose-fitting powered respirators with MSHA and NIOSH approval may be used. Currently, there is only one such unit that meets that and that's the 3M airstream helmet. Must provide respiratory protection program as part of the approved ventilation plan -- contrary to what's done right now, everything that controls how those respirators are to be used must be spelled out in the plan in writing and they're a part of the approved plan. That means that they have to be complied with at that mine at all times. Failure to do so can result in citations. Must maintain dust levels as low as possible with feasible engineering controls -- this is in conjunction with the top bullet. Mine operators are not going to be allowed to take engineering controls or environmental controls out of the mine or take them out of circulation or use once they get approval to use a PAPR program. The regulation specifically requires that all controls that are found to be feasible for that MMU have to be maintained and the operator will be expected to maintain the concentrations as low as possible even though they're using the respirators. Protection factor of two to four, depending on the ventilation air velocity assigned to the mining section -- the protection factor of two to four are impacted because the ventilating air current or the velocity that the air moves along the longwall face or around the continuous miner that velocity affects the efficiency of the PAPR to do its job. So we've factored that into the determination or the protection factors that were generated. That protection factor of a maximum of four is an indication that you can say whatever the dust concentration is outside the PAPR it would be 1/4 of that concentration inside the PAPR. Sampling requirements -- under the current requirements, operator bi-monthly compliance sampling at underground mines, citations are issued for failure to sample. Citations are issued for exceeding the dust level. Operators collect abatement samples to determine compliance after the issuance of a citation and MSHA's quarterly sampling on MMUs, Section DAs and Part-90 miners are conducted at this time with citations issued for exceeding the applicable standard. Under the 2003 proposed rule, the operator will collect plan verification samples for the initial approval and then designated MMUs collect one sample each quarter for confirmation of controls continued effectiveness. There will be no citations issued for exceeding applicable standards on those samples, but the operator must take action to reduce concentrations when a sample exceeds the standard. Failure to take action to reduce the concentrations, if they have a sample that exceeds the standard, can result in a citation for failure to take that corrective action. MSHA collects all samples to determine compliance and abatement of citations. MSHA determinations will be made on a single full shift measurement and citations will be issued for exceeding the applicable standard. Those are all based on single-shift samples, though, not averages of multiple samples collected during one shift or multiple samples collected over five shifts. Compliance and non-compliance determinations --under the current rule, reviews the average of multiple samples to make compliance, non-compliance at all coal mines. We average five samples on five different shifts, the average concentration exceeds the applicable standard by 1/10 or more non-compliance is indicated. Under the 2003 proposed rule, we will use single-sample determinations at all coal mines, both surface and underground. This is one area were we applied this both to the surface and underground mines. A non-compliance level, as an example, for a 2 milligram standard would be 2.33. The 2.33 gets us to 95 percent confidence that the 2 milligram standard has been exceeded based on that one sample. We currently get to that level of confidence by averaging multiple samples, which is five samples on one occupation. The citation levels for all standards, 2 milligrams and below, are specified in the rule itself. What's the effect of this? What we see here is an example of an actual survey that was submitted by a mine operator. And this is five samples collected on the continuous mine operator. And we see that the first sample was 3.2, the second sample 1.6, third 1.5, fourth sample 0.8, fifth sample 3.1. We have an average concentration for those five of 2.0. Under the current regulations, that is considered in compliance -- no enforcement action, no corrective action is necessary. What we're doing under the proposed rule, from what I just described to you, we would be looking at those sections where we 3.2 and 3.1, those are times we consider would be over exposures. The reason that we can impact on reducing Black Lung is that we feel that we need to control exposures on each and every shift, not the average of multiple shifts. The on-shift examination of controls -- the current rule is we do have a requirement right now that all operators have to do a on-shift examination of the dust controls that are in place. That has to be done prior to the shift starting production. If it's a hot-seat type operation where they do not shut down, it has to be done within the first hour. That means they have to go through and check the parameters that were in the plans to see that those are actually in place and working at the beginning of each production shift. Under the 2003 proposal, we maintain that requirement, but it's going to become more important because the verified plans are going to be more detailed, have more true controls that are necessary to maintain compliance. That, in conjunction with the on-shift examination, should give people better assurance that you've got an environment that's probably going to result in compliance for that shift. Miner participation in relation to what we're doing -- the current rule, miners have the right to accompany, with pay, MSHA personnel during MSHA sampling. Under the for-plan submittal, operators notify miner's rep of plan submissions and revisions and post on the bulletin board. Miner's rep may submit comments during the MSHA review. The 2003 proposal -- miner participation during operator sampling. The operator has to notify miners prior to collection verification sampling and have to allow then that previous notice so that people are aware that sampling is going to be conducted at a specific time. The miners must be provided an opportunity to observe that sample, but there is no entitlement to special pay. Miner participation during MSHA sampling the miners have the right to accompany, with pay, MSHA personnel during all compliance and abatement sampling. So any time MSHA comes in to do the compliance sampling or abatement sampling, the miners' rep has the right to travel with us with pay. We still maintain the same participation in relation to the plan that the operator still has to post the plan, has to notify the miners' rep and the miners' rep has the opportunity then to submit comments while MSHA is making a review of that plan. Use of personal continuous dust monitors or what's been referred to as PCDMs -- under the current rule, there is no consideration for PCDM use. The 2003 proposal stipulates that any unit that the Secretary of Labor approves with a conversion factor is acceptable. That conversion factor is to get whatever unit is used and approved later on to where it produces the same type of results as what we get currently with the gravametic sampling units. Designated miners must wear the full shift portal-to-portal PCDM or personal continuous dust monitors. They start to make them usable and where you have meaningful data, the miner would be required to wear that unit from the time they go in the mine until the time they come out, no exceptions. It permits the operator to use the administrative controls without first exhausting engineering controls. Hence, the words "personal continuous dust monitors." These are personal monitors. When you have personal monitoring, you're monitoring somebody for the full shift, that means that the mine operators then would be able to move people around in order to maintain their exposure to less than whatever the applicable standard is. There will be no citations for over exposures based on those readings. They would be recorded at the end of each shift, but there is no citations based on that. They would be cited, though, if a notation is made of an over exposure and no corrective action was taken. The operator is required to take corrective action any time they get notification of an over exposure. Failure to take that corrective action would result in a citation from the agency. What kind of benefits are derived from these two rules? One, we think planned parameters would be gained that reflect actual mining conditions that have been verified at higher production levels; two, no operator-collected samples used to determine compliance; three, production for miners when feasible engineering controls have been exhausted; and four, provisions for the use of personal continuous dust monitors. What are the benefits in implementing these two particular rules? Our intent is to reduce Black Lung and we have used a conservative estimate of what the results would be based on the implementation of both the single-sample and plan verification rules. And what we've projected is conservatively a 42 reduction in the number of people that would develop Black Lung. We've broken that down to designated occupations, DO; NDOs, non-designated occupations; RB or roof bolters and then, the total. That's a lot of information. And to help explain that a little better, we've developed a couple of scenarios that we'd like to go through that would maybe bring home a little bit better how this program fits together along with what's been put on our website as our draft inspection procedures that would go along with these two particular rules. The agency has published on the website only a draft of how we plan to go out and conduct our inspections, how we make compliance, non-compliance decisions so that people could see how this would all work. Under the particular program, if both rules are in place, an operator goes out and collects his first verification sample. He's submitted a plan to the agency. It looks like it has passed the initial in house environment or engineering review so that we feel like the controls are in place or reasonable for that particular type of mining. That they're likely to result in compliance. We tell the operator then to collect the first sample and they go out and collect a sample on a continuous miner operator and a roof bolter. This on a continuous miner section. The first sample results in a 1.6 milligram respirable dust on the miner operator, 1.7 on the roof bolter. We also get 72 micrograms of quartz on the miner operator and 92 micrograms on the roof bolter. Remember, I said at the very beginning for a verification of a plan the operator has to meet two critical values for respirable dust and quartz. We look at them separately. The critical value on one sample for respirable dust is 1.71 milligram. The critical value for quartz on one sample is 87 micrograms. So you can see they met the respirable dust level, but the 92 micrograms on the roof bolters exceeds the 87 critical value for one sample. Therefore, the operator cannot verify their plan based on that one shift of samples. They're required to go back and look at their stuff and take another sample. So the operator does take the second verification sample. We get 1.63 milligrams on a miner operator, 1.69 on the roof bolter; 71 micrograms on the miner operator for quartz and 91 micrograms on the roof bolter. When we come to two shifts of samples being collected for the critical values. We now move up on the respirable dust and quartz because now we have two samples to look at. The critical value for two samples is 1.85 milligrams for dust and 93 micrograms for quartz. Now we see that all levels -- all four dust concentrations, all four quartz concentrations that have been determined each one is below that critical value for that particular, either dust or quartz. That indicates to us then that the plan can be verified with 95 percent confidence that we're meeting both the 2 milligram standard and the 100 microgram standard for quartz. So the operator now has a verified plan. MSHA comes in and collects our first set of samples. Under our inspection procedures, we will collect bi-monthly sampling. Under that, we come in and we collect a sample on a continuous mine operator. We get 1.62 milligrams on dust, 78 micrograms on quartz, miner helper 1.71 milligrams, the shuttlecar operator is 1.41 milligrams. Roof bolter No. 1 is 2.38 with a 138 micrograms of quartz. Roof bolter No. 2 is at 2.42 milligrams of dust with 141 micrograms of quartz. When MSHA looks at those results, one citation for the roof bolter occupations would be issued for exceeding the 2 milligram standard CTV, which is a citation threshold valve and that's the levels that we write citations at, which is the 2.33 on 2 milligram standard that I pointed to in the slide earlier. So any sample exceeding 2.33 on respirable dust would be considered in non-compliance. The roof bolters, Nos. 1 and 2, and we call that -- it's a twinhead roof bolter, you see the concentrations on both exceed the 2.33. We do not write two individual citations. There's one citation issued for the roof bolter occupations because it's one dust-generating source. What the operator does to address that citation to reduce the dust will affect both. The operator, because of that citation, has to take corrective action. And once the corrective action has been implemented, they have to notify the agency within 24 hours so that they agency then can schedule whether it's coming back to collect abatement samples. In this case, we come in, collect the abatement samples. At the same time, this is an entity that's on 2 milligram standards, not on a reduced standard. But we have indications, through these quartz results, that we have some people that are being over exposed to quartz. Because we only have the one set of samples, though, to determine quartz content to set a reduced standard, it has to be based on the last three MSHA samples. We only have one. So it looks like need to wait for two more samples. Normally, you would think that we would wait until the next bi-monthly, get another set of samples and the third bi-monthly we'd get another one before we would be able to set a reduced standard. But because this entity is exposed to greater quartz than what's allowed and it's already on a 2 milligram standard, which does not look like it's protective, the agency specifies in our inspection procedures that we will go and collect two additional shifts of samples within the next 15 days so that we can go ahead and establish the appropriate standard based on quartz. We think the exposure to quartz is important and it needs to be addressed in a short time frame. Based on these results, the operator would be required to sample the MMU quarterly to established the continued effectiveness of the dust controls in the approved ventilation plan. For an operator to qualify to be required to do quarterly sampling, all they'd need is a sample by us that exceeds the standard by any amount. So if we find a sample that exceeds the 2 milligram standard at 2.1, that operator would be required to sample that MMU quarterly to show that their plan continues to be effective and maintaining compliance. Multiple samples collected by either NIOSH or MSHA showing greater than 2 milligram on a 2 milligram standard, but not exceeding the 2.33, so there's no violation, those situations result in the operator being told their plan is inadequate and they would have to go through verification again. A second scenario -- I'm going to use the same sampling results that we'd used on the previous one. So I'm not going to back through the numbers again, but it's the exact same operator verification samples, the operator verifies their plan. What has changed is the samples collected by MSHA. MSHA's first bi-monthly sampling comes in. We show all samples below 2 milligrams on the respirable dust. We show quartz at 78 micrograms and 55 micrograms and 47 micrograms. All of them are less than 5 percent, so they're all below the 100 microgram limit. We state that the compliance is based on single sample for each occupation, so nobody is in non-compliance. No citations would be issued. Now we still need to determine, though, whether MSHA is going to come back and sample each bi-monthly period based on this information. So what we do is we don't look at just the sample concentrations as we get them. We apply correction factors. When MSHA comes in to sample, we understand that the operator probably is not going to be at their maximum production, that 10th highest that we said that they have to sample at to verify a plan. Remember, two-thirds of the shifts we expect to be less than that. So it's likely that we will get production that's going to be less. Typically, the plan parameters are things that the operator puts in the plan. They're going to put more air in their section than what the plan calls for just because that way they get the buffer so they're not right on the limit. So we're likely to find higher ventilation quantities. Will those things affect the dust concentrations? And what we want to determine is what truly, engineering-wise, would we expect those dust concentrations to be to make a determination whether we come back to sample the next bi-monthly period. So what we do is we take our setup for this one that they had a plan that was verified at 800 tons. We've have 750 tons this shift that we sampled. So we had less tonnage. The ventilation during the MSHA sample was 10,000 CFM. The plan calls for 9800. We had more air than what was called for. How do we make a determination as to what that actual concentration is to determine whether we're going to come back to resample on the next bi-monthly is that we take those ratios of the tonnage and ventilation quantity and come up with factors that we apply to the dust concentration. We take the 800 tons that are in the plan, divide it by the actual production that we gathered while we were there, 800 divided by 750 gives us a factor of 1.06. The 10,000 CFM that we found while we were there versus what the plan quantity is of 9800 gives us a factor of 1.02. We multiply those factors by the dust concentrations. You can see that what we're doing is as they change the parameters that will reduce dust, we use those factors then to multiply the concentration to raise the dust higher so that we make a determination as to whether they truly are meeting the standards necessary to maintain compliance with their plan. Based on those results, the dust concentration that we would use to make our determination of going back to the next bi-monthly comes to 1.71. We take the 1.62, which is the highest dust concentration and apply the factors to it. And we take the quartz that's highest and apply the factors to it. We come out with 1.75 milligrams of dust and 84 micrograms per cubic meter for quartz. The 1.75 exceeds the criteria of 1.71 for one shift sample for plan verification. That also kicks in that it triggers us to go back and sample each bi-monthly period. The only time an operator can skip a bi-monthly period of having MSHA come in to collect bi-monthly samples is if they meet the 1.71 critical value for respirable dust and the 87 microgram critical value for quartz. The third and last scenario is one that address the use of a PAPR program. For demonstration purposes, we're saying this is a longwall. It's a Mine A and we're saying that they're only capable of installing such things as the shearer clearer, which is a dust control system, shield sprays, pan sprays. They have a maximum air velocity of 500 feet per minute along the longwall face and they produce, under their 10th highest production level, is 16,000 tons per shift. Based on verification samples, the operator comes in with a 1.9 milligram concentration on the shear operator. The 060 is a 2.0. They have 130 micrograms of quartz on the shearer operator, 145 microgram on the 060. The dust concentrations are below 1 milligrams, but the quartz concentrations are higher than 100 micrograms. So we have a problem with quartz on this particular longwall, not necessarily respirable dust in general. The operator submits that he has said that I've got all feasible controls in place. I don't know of anything else I can do. The agency makes the determination, reviews the data and agrees there is nothing feasible for that operator to do that will change that. Based on that, the operator will submit to use a PAPR program. Now that PAPR program has to be included in the ventilation plan. That program spells out who has to wear them, where they have to be worn, how they have to be maintained, who is in charged of maintaining, who cleans them, who is the one person that the mine that's assigned the responsibility to assure that those PAPRs are used in approved condition and meet all the requirements of the plan. All miners working in by the shearer in this particular situation because of the levels that were found at the shearer operator below, all miners working in by that point must were a PAPR in accordance with the approved plan. The plan will specify the locations that PAPRs have to be worn. It doesn't mean they have to be worn by everybody on the whole section. There are going to be areas that are going to be identified that will address that. The average velocity across the longwall is 490 feet per minute. The protection factor assigned to that MMU is going to be 3.2. That 3.2 is generated by the formula of applying 2 times the velocity of 800 divided by the actual velocity of air on that particular longwall face so we have a velocity of 800 divided by 490. That factor times 2 results in 3.2 as the protection factor on that MMU for the use of PAPRs. The plan must maintain all engineering controls that were determined to be feasible by MSHA. All the controls that were listed up here and the quantities that were found at the time that were found to be feasible for that particular MMU cannot be changed. They have to be maintained at all times. Just because they're using a PAPR that results in a protection factor of 3.2, they come up here and do away with pan sprays. They can't do away with shield sprays. They can't reduce their air quantity -- that type of thing. What we've found as feasible has to be maintained at all times. The equivalent concentration, though, if you had a sample that was 2.0 milligrams from wearing the PAPR, the concentration inside the PAPR would be 1/4th that, which is -- I'm sorry, not 1/4th, but the factor of 3.2 divided into the 2.0 standard, which gives you an effective concentration inside of 0.62 milligrams per cubic meter. One other thing on the PAPR programs, any operator that gets an approval to have an PAPR program included in their plan, that plan is reviewed every six months. The review includes determining again whether all feasible engineering controls are in place. If additional controls become available or the mining situation changes so that they can do other things, then the agency would insist that those controls be put in place to drive the concentrations down as far as possible. Nothing will be done to allow the operator to remove the any of those controls. That completes the overview. MR. NICHOLS: Okay, Bob, thanks. Since NIOSH has joined with us on single-sample, I want to give Gerry a chance to make any comments he would like. MR. NIEWANDOMSKI: Good morning, well, on behalf of NIOSH and our director, John Howard and our associate director for mining, Lew Wade, we wanted to welcome you to the meeting and thank you for attending. We're here today to collect your comments and your thoughts on what's being proposed and we're looking forward to having a productive day. You've already heard the mention of a PDA or a personal dust monitor. To give you an idea of where we're at on developing the technology, and also, to let you know what it looks like, we actually brought one with us today. I have Ed Timmons from our research lab is going to give you a brief update on the PDM now, assuming Ed is here and can hear me. Ed? We're also going to have it on the table in the back for display for the remainder of the day, during a break or a lunch period if you want to take a look at it. We've been working on the PDM now for a couple of years. It's kind of been a joint effort between industry, Labor, NIOSH, MSHA, everybody we could get involved in it. Ed's been personally involved in it for a long time. MR. TIMMONS: Can everybody hear me? Okay, this is the PDM. I'm Ed Timmons from NIOSH. I'm a branch chief of the Health Branch. It's my people that's been working on this in conjunction with contractor, RUP. I'm going to sit this down so I can demonstrate to you. I'll try to talk as loud as I can, though, so you can hear me. This is a dust sampler built into a cap lamp. Okay, inside here are two batteries. One battery operates the cap lamp. One battery operates the sampler. The sampling unit is built completely inside of this. There is a tube that runs right along the cap lamp battery cable to a opening at the top up here, which sucks the sample in right at your cap lamp, a pump inside this drives the sample through that tube right into the unit here where it's sampled. The way it's sampled is really a little technically complex, but it's not all that bad. Inside the unit is a small filter. You see that white filter right there. That filter is mounted on top of a sort of small metal column. That column is set to oscillate. It has a frequency, okay. It oscillates that frequency and as dust loads on that filter as the shift goes on, that frequency changes. And it's that change in frequency that tells you how much dust is loaded on that filter, okay. What the unit does for you is that when you come to work in the morning, you put your cap lamp on, the unit is started up. Somebody starts -- surface. It starts sampling. You can't tamper with it. It runs all day, okay. During the course of the day, you can hit a button down here. You can see what your dust exposure has been so far during the shift. It will also, if you hit another button, project your dust exposure if you continue at that level through the end of the shift. So it will tell you what your dust exposure is at the end of shift or will be at the end of the shift. At the end of the shift, you can look at it and you'll know exactly what your dust exposure is. When you come out of the mine, as quickly and plugged into a computer your dust exposure for that shift is recorded. So you know right at the end of the shift what your dust exposure is. We at NIOSH see three potential advantages of this. One is it's ergonomically simple for the miners because every day when come put your cap lamp on, you're putting your dust sampling unit on. You don't have to wear any other additional dust sampling equipment. Right now, this thing weighs about a pound more than the conventional cap lamp does. So it's not adding much weight to you, but you'll be sampling your dust every day. What we at NIOSH are aiming for is to empower you guys and to empower the mining company to know what's happening to you during the shift so you can see what's happening. You can do things to control your exposure. We think you guys are pretty smart. You know how to protect yourself. If we can let you know what your exposure is, you're going to do something about it. You might move a few feet over and in a couple of shifts you're going to learn a little bit about where to best position yourself to reduce your exposure. You're going to know when you exposure suddenly jumps up one shift, maybe some of the control parameters aren't working, so you've got to check your sprays. You've got to check your ventilation. You know, it's going to empower you. It's going to empower the company to do something about your exposure. It's going to allow you to get samples every shift. So it isn't going to be once a month. Every shift you go underground you see what's happening to you. That's the whole idea of it, okay. And it's going to allow you during that shift to see what's happening to you. Now what's the status? The status is that going back about three months ago, we had four of these delivered to us. We put them through a very intensive laboratory test program where our finding was they met all the criteria we'd established in terms of do they accurately measure dust? They accurately measure your dust. We're comfortable with that. We did want to make a couple minor changes. They've gone back to the contractor who is making those changes right now. We hope to have six of these in our hands within about a week. At that point, we're going to go into a very intensive four mine underground study and look at different mining conditions -- longwalls, continuous miners, high seams, low seams, different coal seams and do a couple of these. Number one, see how well do they work underground in measuring your dust? How well do they hold up? Do they survive the mine environment and what will they do in terms of your day-to-day use? How direct are the day-to-day use? What will miners do with them? How do miners like them? Are miners comfortable with them? Do miners change their behavior using them? Can we do something about your dust exposure using them? So I would say probably in about three months we're going to have results on these. At that point, we'll put together a report on our findings, have that report technically reviewed and then provide it to all our customers -- the mine workers, the industry, MSHA and let people decide how best to use them in terms of protecting miners. At this point, I will tell you NIOSH is quite optimistic about them, but we do have to go through the underground test program just to make sure we confirm how well they hold up underground. I'll be happy to answer any questions. MR. NICHOLS: Thank you, Ed, I appreciate it. We'll leave the unit on the back table back there if you want to take a look at it during the day or at least as long as Ed's here. (QUESTION ASKED OFF MIKE.) MR. TIMMONS: Yes, there is a power takeoff on the prompt here. One of the problems we are working on is that different units have different plug-in units, so we may have to come up with some adapters, depending on the mining company. MR. NICHOLS: Okay, thanks, Ed. (Applause.) MR. NICHOLS: We'll start with our first presenter, and our first presenter is Cecil Roberts, President of the United Mine Workers of America. (Applause.) MR. ROBERTS: Can you hear me all right? MR. NICHOLS: Yes, we hear you. Can the court reporter hear? MR. ROBERTS: I want to thank MSHA and NIOSH both for the opportunity to be here this morning and participate in the comment period on the proposed dust rules. I want to welcome all of you to my home area of Charleston, West Virginia. Actually, Cabin Creek, West Virginia, which is about 20 miles southeast from here. It's appropriate that we're here today because in 1968 in the northern part of the state a terrible disaster occurred that set the stage for the Mine Act. The Farmington Disaster took the lives of 78 coal miners, 19 of whom are still entombed underground. I remember the history of this well having just gotten home from service in Viet Nam, watching this on television. And immediately after the Farmington Disaster, coal miners in West Virginia became heavily involved in the political process and marched across the river here to their capitol and demanded from the state legislature that they pass, actually, the first meaningful state Black Lung law. That year was a landmark year also because the Federal Government and Congress passed the Mine Act. So 34 years ago Congress a great deal of history was made right here in this area. We know this law as the Mine Act, all of us that worked in the coal mines or worked daily with protecting miners' lives we just call it the Act. Thirty four years ago, Congress stated in Section 201(b) "it is the purpose of this title to provide, to the greatest extent possible, that the working conditions in each underground coal mine are sufficiently free of respirable dust concentrations of in the mine atmosphere to permit each miner the opportunity to work underground during the period of his adult working life without incurring any disability from pneumoconiosis or any other occupational-related disease during or at the end of such period." I just want to mention briefly, too, that while most my testimony is directed towards pneumoconiosis and Black Lung concentrations of dust, the Farmington Disaster in 1968 was made obviously much worse by coal dust in the atmosphere for how the explosive all the way up to the Jim Walter's No. 5 explosion in 2001 that claimed the lives of 13 miners there. Float coal dust in the atmosphere contributed heavily to that explosion. Section 202(h) of the Mine Act states in pertinent part that "The use of respirators shall not be substituted," and I want to emphasize that, "shall not be substituted for environmental control measures in the active workings." It seems to us that these proposed rules do substitute for environmental controls in the active working areas. Section 303(b) of the Mine Act states in pertinent part that "The Secretary shall prescribe the minimum velocity and quantity of air reaching each working face of each coal mine in order to render harmless and carry away methane and other explosive gases and to reduce the level of respirable dust to the lowest attainable level." It seems that Section 303(b), to us, of the Mine Act requires engineering controls to control the dust in the atmosphere. And what these rules seem to do, to us, is say, well, you can't do that. There are instances where environmental controls or engineering controls don't work. So here we are 34 years after the passage of the Act saying, well, what we've been lead to believe that there's less dust in the atmosphere, that miners are not breathing coal dust, we're now kind of indicating or implying that, yes, they have been because the environmental controls, engineering controls have not been sufficient. Given these mandates enacted by Congress 34 years ago, I stand here today in awe as to how insightful and quite frankly, perceptive they were such a long time ago. Let us not forget that everything Congress mandated in 1969 was based on sampling miners based on their working 8-hour shifts. One of the unfortunate things about today's mining conditions is that miners don't work 8 hours. Coal miners are now working 10-hour shifts and in some mines in this country, they're working 12-hour shifts. The fact is I'm not sure anyone really knows how many miners have died from Black Lung prior to the passage of 1969 Mine Act. I recall the miners used to say when I was kid, he has miner's asthma. Well, miner's asthma turned out to be pneumoconiosis and it turned out to be something that killed many, many miners. We estimate that the number is probably in the neighborhood of 100,000 miners have died in the last 100 years due to pneumoconiosis. It's important to note that based on what Congress thought would be adequate in 1969 resulted in, and this is according to the Department of Labor, 106,519 recipients of Black Lung. These are people receiving checks from our Federal Government. It does not count 6000 claims being paid by operators. So we're talking about since the passage of the Act, 112,000 people out there receiving a check, either from the Federal Government or from a coal operator. Now what's amazing about that is the approval rating. Now these 112,000 people getting a check that sounds like a large number and it is. But they approval rating is only 7 percent. So for every 100 miners that go to their Federal Government to say I've got pneumoconiosis, you'll have 7 of them that eventually, through a long and tedious legal, medical nightmare of many, many years eventually receive benefits from the Federal Government. For many years we've said and suggested that not probably, no question about it in our minds, there are many, many more miners walking around with Black Lung than those who are actually getting benefits. A recent report by NIOSH prepared from data collected by MSHA of miners still working reveals that miners continue to be sickened by coal mine dust. We've come here today, I believe, with an agreement that the law that was passed in '69 has had great benefits, but miners are still getting sick from Black Lung. We might disagree on a lot of things today, but I think it would be hard to debate that aspect of conditions that exist today. Miners are still getting Black Lung. There's no question about it. This evidence dictates that dust levels in the nation's coal mines must be decreased to protect miners from Black Lung disease. What this tells us is that what we're doing now is not adequately protecting miners. The protections in place since 1969 have had marvelous results, but they are not meeting the requirements of the miners to keep them from getting sick. They are still contracting Black Lung disease. You have 20-year old coal miners who have just started their career and 20 years from today they're going to have Black Lung. I don't know what the end result will be with respect to entitlement of benefits. There may not be a Black Lung Program 20 or 30 years from now. It's a continuous fight to see that those benefits continue to flow to miners who are crippled by this disease. So the thing we must concentrate on today is to keep all coal miners, those that are coming to the end of their careers and those 20-year old coal miners who are beginning their careers, we must take action to prevent them from contracting this disease. They should not expect to be sick because they work in the coal mines. I think we all, I would hope, agree with that. Now that brings up to today. The government is in the process of reforming the coal mine respirable dust problem to deal with the unhealthy coal dust that can and has destroyed miners' lungs. An overhaul of this program is needed to protect miners from the disabling and deadly diseases caused by breathing respirable coal mine dust. We all agree that we need to do better. As president of the UMWA, I and the miners I represent have called for these reforms for many, many years, but these reforms must be done properly. the proposals released on March 6th, in our opinion, are misguided and would be adverse to miners' health. There are fundamental problems with the newly-proposed respirable dust rules, putting miner operators on one side of the debated and miners on the other. And you say, well, why would I say that? It's clear to me by some of the public comments that have already come out that the industry believe these rules are okay, at least, okay, maybe they like them. Comments by coal miners have said we don't like these rules. Why do operators like them and the miners dislike them? Well, maybe we can figure that out as we go forward, but I think one thing that was very telling by one of the leaders in the industry yesterday or day before, we want out of the sampling business. We want out of the sampling business. If we sample and the miners are in compliance, we are accused of fraud. If we sample and the miners are out of compliance, we're fined. Well, there's an easy answer is don't commit fraudulent acts. That cures that problem and keep the miners in compliance, and that curs the second problem. So the industry's argument of, well, we want out of the sampling business because of those two reasons I think are very weak to say the least. Now that brings us here today to talk about what we need to do. The debate about the proposed rules really boils down a few very simple, but critical, issues. On one side you have mine operators wanting more flexibility by permitting higher levels of unhealthy coal mine dust in the mine environment, while also reducing the frequency in sampling of mine atmosphere. On the other side are the miners who demand a reduction in the levels of respirable dust permitted in the mine atmosphere. I just want to comment we're not alone in that. There was an advisory committee of MSHA, an advisory committee of NIOSH, both recommended that. So the miners don't come here today suggesting something that advisory committees established by MSHA and advisory committees established by NIOSH also supported that. So I assume that the operators are the ones who are on the other side of this issue. Now miners seek more frequent and more reliable sampling of the mine environment to make sure respirable dust remains at a safe level. I'm assuming that, that's something that NIOSH and MSHA as well as the miners support. I assume that's a correct assumption. Now the real debate is what constitutes adequate sampling of respirable dust? It's been a controversy for years. Miners want more sampling. Mine operators want less. And for years, mine operators have controlled this program. Over the years, there's been evidence of widespread manipulation in sampling by many operators. Some mine operators do not want to spend the time nor the money needed to consistently control dust. For too many years miners have complained about all the increased measures that are taken by coal operators on sampling days versus what they are expected to work in a daily basis. There's not a coal miner in this country, union or non-union, young or old, if they honestly tell you that on the days they're sampled, there are different conditions in the mine than when they're not sampled. I don't think there's anyone in this room that doesn't understand that. I believe everybody in this room, whether you're up front or behind me or anywhere, knows that's the case. The manipulation of ventilation -- water sprays, rock dust and the speed and production of coal all play a part. No matter what we do here, unfortunately, none of us control the speed of production. No matter how we deal with this. The validity of miners' complaints have been confirmed. For example, during the '90s, 160 companies and/or individuals were criminally prosecuted for fraudulent coal mine dust sampling practices -- 160 companies or individuals. The union believes this represents only a portion of the dust coal fraud that has been perpetrated over the last 30 years. An honest system with regular coal mine dust monitoring and sampling is needed to curb these kinds of abuses. I don't think anybody disagrees with that. One should be be to expect that the government agency charged with responsibility of protecting these coal miners would learn from past history and create reforms to ensure compliance with respirable dust standards. However, in this case, the UMWA believes MSHA has fallen short of its responsibility. The proposed rules fail to respond to the miners' needs, and I might add fails to respond to both the advisory committee established by MSHA and advisory committee by NIOSH. I believe one was in '95 and the other in '96, while allowing higher levels of respirable dust and less sampling. And I assume, based on the prior hearing there was a lot of debate about that, but I think that's a fact. MSHA also ignored findings and recommendations by NIOSH and MSHA's own advisory committee, which was created to recommend our best to overhaul the respirable dust programs to eliminate Black Lung disease. MSHA disregarded recommendations from miners and other compelling evidence. Most of all, it disregarded what Congress mandated in the Act. The proposed rules are complex. And if anyone doesn't believe that, try to read it. The proposed rules are complex and mine safety professionals are having a hard time even figuring them out. They are filled with exceptions, complicated and confusing formulas and language that's misleading. Moreover, this rulemaking effort was released on the heels of several serious mine accidents and while other comprehensive rulemaking is taking place, making it difficult for us to properly analyze and adequately prepare comments. One of the primary examples of the changes we believe are misleading within the new rules concerns maximum permissible respirable dust levels. I want to go back to the beginning of what Congress said about this about ventilation controls and engineering controls of being the way you control respirable dust. Under the proposed rules, MSHA would allow mine operators to maintain increased levels of respirable dust in the active workings of the mine far beyond the permissible limits set in the Mine Act. Congress said 2 milligrams per cubic meter. There's no debate about that. That's what the law says as the maximum amount of dust that now maybe maintained in active workings. Yet, under the proposed rules, MSHA would allow operators to maintain four times that amount, up to 8 milligrams per cubic meter with miners having to use respirators, protective equipment to reduce their exposure -- these airstream helmets. It seems to me that we have made an exception to what the law says. The law doesn't say that in most instances the atmosphere will be 2 milligrams. It says in all instances. And then, there is a strict prohibition forbidding the use of air steam helmets. So what we are at least are saying is there are instances when the dust is higher than what the law suggests and we're saying they can't be controlled by what the law says and we're saying we're also going to use respirators to correct that problem, which the law, in our opinion, forbids. Figuring this out is hard because nowhere in the rules is it directly spelled out that levels of dust could be as high as 8 milligrams per cubic meters without MSHA citing the operator. It's my understanding that this issue was thoroughly discussed at the May 6th hearing in Washington, Pennsylvania and the panel confirmed that under the proposed rules, respirable dust levels could reach 8 milligrams per cubic meter in active workings. Now we could probably get into a big debate about this and spend the rest of the day about that, but according to quotes that I've read and widely disseminated across the country now that, that was confirmed, but that's not going to happen. If it's not going to happen, why would we say it can happen in certain instances. If it's not going to happen, we don't need to have an exception. We don't need respirators if it's not going to happen. There are other proposed changes that further reduce miners' protection. For example, MSHA proposes giving the benefit of the doubt regarding the accuracy of samples to the mine operator when it comes to citing the violation for exceeding acceptable, respirable dust levels. Well, I believe you should give the benefit for the doubt to the coal miner because he's the one that's going to contract Black Lung, not the operator. In other words, whenever dust levels would be in excess of the legal limit, levels would have to exceed the limit by an additional margin of some type before MSHA will cite the mine operator for non-compliance. Congress intended that the mine environment where miners work would never exceed 2 milligrams per cubic meter of respirable dust. The proposed rules do not heed to this mandate. And as I said before, miners that work on shifts longer than 8 hours would only be sampled for part of their shift, which means that they will be exposed to much more dust than they are sampled for and operators might never be cited. Well, MSHA claims the new rules would include a plan for the government to take over the troubled operator-controlled dust sampling program. We've been supporting this for years and advocating this for years. This simply does not appear to be the truth. Indeed, the agency has completely eliminated the number of samples previously taken by the operator and MSHA will not conduct such sampling as part of its responsibility. Currently, if I do my Cabin Creek math correctly, the operators are required to do about 30 of these a years, samples. MSHA does about four samplings a year. That's about 34 if you add those numbers together. The mandate for the operators is gone, not that they won't do some sampling, but the mandate to do sampling is eliminated in these proposed rules. It's gone. So those 30 required samplings by the operators are no longer there. So the position of the industry "we want out of the sampling business" is gone. Now we're down to how many times will MSHA be sampling. It appears that there's a requirement for six opportunities per year. We're trying to do the math on this as we look at it. So we're down from 34. It looks like MSHA is going to do six. However, there's an exception there. It appears that it would give you the right to go to three per year. That's what it appears to be and many people poured over these rules and you can tell them, well, we're not going to do that. Well, if we're not going to do that, let's not. Let's just not do it. Let us know what the miners have and what the miners don't have here. So it appears there's a drastic reduction in the amount of samplings that's going to be done over the course of any given year. The current sampling of 34 working shifts we believe is insufficient and most people agree with that, and reducing it would dramatically reduce miners' protection. We think there needs to be more sampling, not less sampling. Please understand that the proposed MSHA sampling provides that significant discretion is left to the agency. So even to something that is referred to in the proposed rule is not absolutely, in our opinion, required. There's a number of serious flaws with the proposed rules as well. They would allow mine operators to replace engineering and environmental controls of respirators, which I think is a violation -- we believe it's a violation of the Act. Moreover, MSHA has been advised that the specific respirators it wants the miners to use in dusty conditions are not proven reliable and maybe faulty. That's come out in previous testimony when the 2000 rule was being discussed, debated and ultimately withdrawn. Mine operators even testified to that. Also, the plan verification system proposed by MSHA has too many loopholes. First, it let's the fox guard the hen house. With the mine operator instead of MSHA controlling the initial verification. Second, the process will take too long and it will be too easy for operators to operate the system, which would defeat the intended protection. The answer to this is continuous monitoring. Continuing monitoring should be the standard for ensuring plan verification. But MSHA's new rule would not utilize this technology. In 1980, that's 23 years ago, MSHA promised miners that it would work to develop a continuous dust sampling device that could be used to constantly monitor respirable dust levels to help end widespread abuse. With the support of the United Mine Works, some coal operators and the hard NIOSH, a continuous sampling device now exist and is going through final testing. We just heard about that 20 minutes ago. It can be built into the miner's cap lamp battery container to be comfortably worn by miners on each and every shift. It would provide instantaneous readout of dust levels throughout the shift. We'd never have to wonder what kind of atmosphere a coal miner was working in, and even provide projections of how much dust miners would be exposed to if exposure limits continued at the same level over the course of that shift. This would be the most adequate reading the miner would ever had or has ever had in the history of coal mining in this nation. At the end of a shift, the sampling device would provide immediate information showing the dust levels for that shift. The same data could electronically downloaded to MSHA. A benefit would be that by providing instantaneous information, dust controls could be immediately adjusted when necessary to lower dust levels. It could provide information every shift, every day for the miner, operator and MSHA to use to track miners' exposure and operators' compliance. It would allow dust sampling for the full work shift, whether that shift is 8 hours, 10 hours or 12 hours. The proposed MSHA rules acknowledges the continuous sampling device, but only offers it as an option for the mine operator to use. This remarkable continuous sampling device is now going through final testing and NIOSH expects this to be completed by late summer. It is our position that MSHA should require the use of continuous dust monitors once the testing is complete, not optional. Here is our view on this. If you make this an optional situation for coal companies, they're not going to spend the money, number one. And I believe there are many in this nation who do not want continuous monitoring of the coal miners working in their coal mines. And I believe that there is evidence to that fact. The debate over reforming the respirable dust program must be resolved in favor of the miners' health. So if we're going to have a debate about what to do about dust, how should that be resolved? And I think everyone in this room agrees that it should be resolved in favor of the coal miners, not in the interest of the coal industry. It should be resolved in favor of the coal miner. Sadly, too many instances the protection of coal has been paramount, supersedes the protection of worker's health and safety. As you know, on many occasions this practice has met with disastrous results. We cannot allow this to occur again. Any new rule must be consistent with the intent of Congress. What Congress declared in the Mine Act was true in 1969 and it's true today. The first priority and concern of all the coal mining industry must be the health and safety of its most precious resource, the miner. Respirable dust levels permitted in the nation's mines must be decreased to protect miners from Black Lung disease. Dust sampling must be increased to assure miners are not over exposed to unhealthy coal mine dust. The misguided and seriously flawed rules issued by MSHA must be withdrawn and recrafted to reduce levels of respirable dust in the mine atmosphere. By mandating continuous monitoring, requiring more frequent compliance samples, having MSHA take over the samples and sampling regularly and also ensuring miners participation in all levels of the respirable dust program. Thank you very much for this opportunity. (Applause.) MR. NICHOLS: Thank you, Cecil. MR. ROBERTS: You're welcome. MR. NICHOLS: Let's take a break until 9:45. (Whereupon, a short recess was taken.) MR. NICHOLS: The next presenter will be Joe Main. Is Joe here? Okay, while Joe's showing up, I did not want to ask Cecil to spell his name for the court reporter, but you guys that come up after Joe, Joe won't need to do that, but the rest of you guys, would you please spell your name for the court reporter when you come up? MR. MAIN: My name is Joe Main. I represent coal miners and I'm the administrator of Health and Safety for the United Mine Workers of America. I apologize for my voice today, but I think MSHA has just about wore me out. There isn't much steam left in this body, Marvin, but I'm going to keep on trucking here. I want to start off today with a point that I raised yesterday, and it has to do with a very complex set of rules that was issued on March 6th in a very short period of time that people have not really had the opportunity to read, review and comprehend. I know I met with a group of miners last night. Some heard this for the first time and are trying to plow through this very complex, confusing proposal that, as President Roberts pointed out, many of us safety professionals couldn't even figure out. And if it wasn't for the opportunity to have a number of meetings with the MSHA folks who worked on this rule to explain it, I would be sitting here still clueless about this rule today. The one thing that bothers me, and I raised this in the briefing meetings that MSHA gave us, is that there is a need for a full explanation of what this rule does. And as I pointed out in Washington, Pennsylvania on Tuesday at the hearing, we don't believe that's happened and I'm going to explain why. I think it's unfair to miners not to have the full measure of understanding of what this rule does. The half hour Powerpoint, and this was raised in the discussions we had during the staff that we felt that, that would be inadequate to really go through what miners need to go, given the fact that we went through probably six plus hours of meetings just to get to the level that we are. And we've worked hard to try to transfer that information out to the mine community and to our miners, but we're way behind schedule. So there's a lot of miners in this room that wasn't even there last night to get that briefing. And I've tried to absorb all of the details of this rule on their own. Now the problem of it is they haven't done all they need. You've got this thick rule, which is both the single-sample rule and the plan verification sampling rule in a very fine print, two-sided document accompanied with a preamble. You've got what's called a PREA, which is a preliminary regulatory economic analysis. Here it is, two-sided, a lot of stuff to read in a very short period of time. You've got the agency policy document, which is about that thick which has pieces of this rule, or I should say policy, pertaining to pieces of this rule tucked in it. And you've got a couple of other documents that, quite frankly, I just seen the other day. One is about that thick. I haven't had a chance to even read it yet, and didn't know what it's about but it's suppose to be an accompanying document to the rule. Just to understand what this rule does and how it's going to be implemented. It is over the heads of the miners. It's over the heads of safety professionals and it's so confusing and complex that I think it's going to be a bureaucratic nightmare and a regulatory nightmare if this thing every hit the light of day. It's laced with formulas, exceptions to the point that what you think you've read is not what you've read. And one of the troubling things I have with the charts up there, it doesn't really explain what this rule is going to do at a lot of different mines. The reality is that a mine in this country, miners represented here today I don't think have any clue what the new standard is going to be when it comes what President Roberts was talking about and that is the amount of respirable coal dust that's going to be allowed to be in the mine environment in a coal mine in this country under this rule. We were told in meetings we had with MSHA that this formula for using airstream helmets would, in fact, allow the dust levels to be up to 8 milligrams with the factors that's used. It would allow that to happen. Whether MSHA approves it or not, we understand that's the difference there. We also understand that under the current scheme you can't do that. It's not legal to do what you're proposing to do here to allow the dust levels to increase to this 8 milligrams. We also found out during those meetings that on this plan verification sampling process for a mine that is on this 8 milligram standard, MSHA would have to find, I think, 6.67 milligrams of dust, calculating in the other factors of air flows and all that kind of stuff, before the operator would be required to do a quarterly dust sampling on their own of the quarterly sampling. Now we were getting on to it yesterday at the end of the day, and it was sort of like pulling a little bit of teeth for us to get this out, but that under this scheme the mine operators that would be approved should MSHA approve that, they would not be cited for a violation until the dust levels reached 9.33 milligrams in the mine environment. It's totally illegal, totally outrageous and it's far from where we need to be to really clean up these coal mines and protect the miners. Those kind of things are not getting out there unless we put them out there, but that's a reality that could happen under this rule. There's a difference of opinion here. We recognized that yesterday. You say we're not going to let that happen, Joe. We're going to make them do this, this and this. And we say we've seen enough experience that we don't trust that. And when you look at some of the formulas in this standard, it deals with things of capping off air flows, which we think again is illegal. I'm going to walk through -- I sat down after the discussions yesterday to take a fresh look at this and I have found that several provisions of both Title 30 and the Mine Act that you're proposal is directly in violation of. With regard to the PAPRs that's being talked about here, the plan is the operator can submit a proposal to MSHA claiming that they have exhausted all feasible engineering controls. MSHA then has to make a determination, a policy determination about whether or not that operator has exhausted their controls. We've been in this situation before. Thank God we had this law protecting us or we would have had airstream helmets replacing coal dust environmental controls in the past. And I've been personally in situations where that experience has occurred. It comes to the question of currently miners have a bar under the law to prevent you guys from even considering that or doing that. Under this proposal, that bar is gone. You will have that right to approve those dust levels up to 8 milligrams. And what we've got to do is say, okay, under this new proposal, we've got to be willing to trust the agency to do the right thing here to make those guys put in those mines what they need. I can tell you this that had this standard been in effect in the late 1980s before we got shield sprays on longwalls, we would never had shield sprays on longwalls in these coal mines. And I would dare to see MSHA try to force them to be there. As a matter of fact, with the law the way it was, we had a difficult time forcing some mine operators to install those kind of controls with the 2 milligram standard and the legal responsibility that the operator had to meet that standard. It has been a dog fight out there. I mean, we've all experienced that. With regard to air flows, I look at this proposal and I see one simple thing. Your coal mine operators have to put enough air in the coal mine to reduce a bit of harmless methane for a good reason. Congress made that clear. You're going to put it in there. Whatever it takes to keep that methane down not to exceed 1 percent at the face and they've got to do it. Now the way this rule is geared, it sort of says we're going to continue to do that methane control, but when it comes to dust control we're not to apply that standard that way. We're going to let mine operators have less air in these coal mines and have higher dust levels. And when you look at the formula setup, it's like why should some mine operators be given the opportunity to have their air flows at what, 400 foot per minute? And have the opportunity to jack the dust up to 8 milligrams while other mine operators to satisfy -- if you look at the truth of the matter, have to have higher velocities to control the methane dust. There's an encouragement here for operators to reduce the number of mine openings for air that they put in mines. There is a drive here for operators to not develop, spend the money and time to develop the entries needed carry air out if the agency is not going to make them have the air at those working places. And when we get into the duct sheer and say, gee, we haven't got the air fellows. Now what are you going to do? It puts us all in a real box here. It's a box that we've been put in before where we've run into situations where mine operators cut short their air capacities going into the coal mines. This encourages that to happen when you get to the dust dealer. The law is very clear in many places. It requires ventilation of mines to not only deal with keeping the methane levels down, but keeping the dust levels down through the lowest achievable levels. Before I wrap up here, I've got about six or seven standards I want to cite into the record we found that just finds this proposal totally illegal. With regard to the PAPR problem, I sat through testimony in 2000 and heard a number of miners and company individuals lay out a case that those things are faulty. They are not being used in the state that they are approved under the NIOSH rule and there are number of reasons for that -- the filter problem, the conditions of work that miners are in if their head fogs up, the inability to breathe well with those helmets on. They take the neck skirt off that breaks the seal. The griminess of some of these mining conditions that the miner wipes that shield off with his dirty glove and dirty sleeve that winds up flipping the shield up more than it needs to be, which also breaks the approval. I mean, this is not us laying out some fictitious happening. This is stuff that's on the record that has been known for some time. Clearly, since the record was developed in 2000 during the rulemaking. And the sad reality is that what is about to happen here, MSHA wants to take that same faulty system that's in place and put that in the mines for miners to use, to wear to protect them against these increased dust levels. Now had the agency sat back in 2000 and said we're stopping this. We're going to make them have legal respirators in coal mines. There may have been credibility, I think, to the agency's argument here. But given the fact that the agency has known this to be the case for three years, continues to be the case, top officials from industry testified to that at the PAPR hearings we had April 10th in Washington, D.C., saying that these things are not being used as they should. And what he said in substance was they're not being used as approved. There's a standard under the regulation, I think it's 70.300. I just want to read that because there's a couple of problems here that I think, after reading some press articles yesterday, I think is misleading people as well. Section 70.300 of the current regulation says "Respiratory equipment approved by NIOSH in Part 45, 42 C.F.R., Part 84 shall be made available to all persons whenever exposed to concentrations of respirable dust in excess of the levels required to be maintained under this part. Use of respirators shall not be substituted for environmental control measures in the active workings. Each operator shall maintain a supply of respiratory equipment adequate to deal with occurrences of concentration of respirable dust in a mine atmosphere in excess of the levels required to maintained under this part." Very simply, operator you have to employ the engineering controls to keep your mine in compliance with the standard. You have to provide respiratory protection that meets the approval of NIOSH as a protection when you go through those excursions to protect the miners. And that protection has to be readily available to miners and it has to be there to be used in an approved state. What we have is a situation that, that's just not being enforced in this country. For whatever reason, we haven't been able to get the agency's attention to sit down and look at this because the sad reality is that there are miners out there that's using these respirators that believe that they're protecting them when, in fact, they're not being used as approved and they will not provide the protections that was intended. The second problem is that we've got evidence coming out that the flow rates of these PAPRs are not enough, even if use them in the approved state, to provide the protection that miners need. With the exertions, the work conditions that miners are in, the overbreathing problems and you breath around those shields. So we have a problem here that what is about ready to used to satisfy a provision of this law that is a tool that has been found flawed. I call them the leaky respirators now because that's what they are. With regard to the testimony on the record by industry alone and supplement that with miners, you can only call them nothing short of a leaky respirator that does not meet the approval. With regard to the current standards, I'd like to clear the air here. There's some impression, gee, we're going to require these respirators for the first time for miners. That's just not true. The law has been in effect since 1969 obligating mine operators to provide approved respirators to miners and they darn well ought to be doing that. And we darn well ought to be looking at what is going with the respirator program that's in effect that don't meet the current regulations as oppose to legalize a flawed system. With regard to a couple of issues that was raised yesterday, and I'll start with the PDM-1. We looked at this rule, and what's not being said here is, will anybody really use this? Will anybody really use these PDM-1s under this rule? Our evaluation is no. And we heard from John Gallick, a representative of coal operators, yesterday that told you the same thing. I think his words were "I doubt if there's a hundred of units sold regarding this rule." We questioned whether there had even been 10 sold for the purposes of using it under the rule or even one. And our reason for that is really simple. When you look at the way this law is going to be applied, and you look at what would drive an operator to actually change one system to voluntarily use these devices, it becomes clear to even a kindergarten what's going on here. Under the rules, a mine operator, at best, would decide I going to do maybe -- the maximum side of this as far as the quarterly inspections and the MSHA dust sampling inspections, what does it come out to, 10 a year? Okay, that's at the top end of this whole range is that we were told by agency folks when we had the meetings. I'm going to throw that away and what I'm going to do here is I'm going to buy these units and I'm going to self-impose a shift-by-shift verification of the dust levels in my coal mine. I'm going to do that. I'm going to buy these units expected to be somewhere, I heard, around seven grand apiece. I'm going to out on my own buy all these expensive units and I'm going to impose a new standard on myself as oppose to that. That's their top end. The expectations, according to the agency is, is that we're not going to have no 10 shift samples a year under this rule. Based on the estimations that was provided to us during those briefings was that they expect -- you guys expect about 85 percent of the mining units in this country for operators not to be doing the quarterly sampling. That's not my numbers. That is your numbers and you claim it's in this PREA document here, which we haven't had a chance to analyze yet and to replace, in these cases, a sampling program that the operator would use where they would only have down to one sample, which is for plan verification, to sample 365, 24/7 is absolutely ludicrous to think that operators are going to do that on their own. Does anybody in this room believe that some of the mines who have had these criminal prosecutions, who have intentionally done things like take the dust sampling to the mine office, take a coal bucket and shake it up to make a sample to cheat the system is going to go buy those to put those in those mines to protect those miners? I think not. And if you look at history, and just go back to the findings that was in the Louisville Courier Journal investigation, which I want to introduce as a document into the record today, which found widespread cheating in the dust sampling program. And it talked about how they intentionally bypassed systems that's easily verified. You know, mining section -- continuous mining sections where we would all agree, I think, it's a lot easier to verify one of those sections than it is a longwall. But what they do is, when the feds aren't there with the dust samplers on, according to the information here, you know, verify every plan you won't, it ain't going to be in place and those miners in some of those mines are too scared to death because of fear of losing their jobs to speak up about it. That's the reality of this industry. Not that we think that an operator at those mines is going to use those PDM-1s to check those miners that are probably the most vulnerable in this country to protect them? You know, bring them to me. I want to meet this invisible person because they don't exist. They're not going to be there. As John Gallick said, operators are not going to exercise this option and buy those units. The other sad reality is, when we get into the dust inspections, in looking at the Louisville Courier Journal findings where the widespread cheating was going on because of lack of sampling going on in those coal mines that when the cat's away the mice will play. They fix things up to get you guys in and out of that mine. And when you leave, they put those miners in that dust. They don't stop to bring their line curtains up, don't fix their water sprays and things that it takes to keep the dust under control in those mines. They run free-wheeling and it exposes a lot of miners to unhealthy dust. There's two answer to that problem we've found, and we've searched through this for years. One, either park a federal inspector on that shift every day, 24/7, 365 or park a unit on there that will document what the heck is going on. The beauty about this thing is that some the fraudulent practices that we've heard over the years where they the dust sampler out and hang it in the intake airways. It's hard to hang that monitor off that roof bolt, okay. It's tough to do. And if the miner takes it off and hangs it out there, it's darn hard to see in a coal mine without a cap light on. And if you hang it out there, some of the things that wasn't talked about here yet this morning -- we spent a lot of time looking at the tamper-proofing of that system. If that thing is sitting still, it'll show that there's no motion. If somebody puts something over the inlet to plug up like we've heard has happened before, that system is designed with the computer technology that's in it to detect that and record that. All these things are being recorded as part of the process. You know, designing a way to take the tampering out as much as we can. Some of these operators will figure out some way to get around the system, but you know, to the extent where we're at today and what's going on that is the only thing, if you really want to clean up the dust in the coal mines where we know the fraud and cheating is going on when the cat's away, it's the only solution that's there. Now the proposal by MSHA to do a spot check of those mines, one shift spot check six times a year at max is not the answer to that problem. It will not fix it. And we've got to stop fooling ourselves about these, you know, band aid approaches to life here. You will not cure that problem with the plan verification scheme. You will not cure that problem with regard to the infrequent samplings. And those that figure out a way to beat you while you're there to get that dust down, and then to go to three a year? I mean, six is outrageous. Three is absolutely nothing. It doesn't do what we need to do to fix the dust problem in those mines. That is a reality. We've got to come up with a system that provides continuous monitoring of the mines if we're going to fix this problems. Coal miners that work at union mines that are represented here, you ain't going to see a whole of miners, I guess, unless the company decides to drag them in here and pay them or not pay them and tell them to get in here that they can't speak for themselves. That's one of the limits of this whole process. All this external documentation is sometimes the best evidence we've got to what's really going on. But I can tell you in the union mines we seen manipulation of the dust sampling. If you ask any miner, he'll tell you that the conditions are its best in the mines the day that sampler goes on because we're in there and they ticker around to make sure everything is up to speed. The waters are dusted for calcium in the water. All kinds of different things are going on beyond the plan parameters we're talking about here that takes place. I've heard that the monitor that goes on with the monitor, so to speak. When that dust pump goes up on that section that -- goes in there the boss in up there making darn sure everything is working okay. You think that boss is there everyday? No, he's not, not for that purpose. These continuous dust monitors are critical to fix the problems in the union mines and the non-union mines alike if you're going to clean up the dust and get these guys out of the dust. I noticed the reluctance to get this unit up here today. It's frustrating because I want to talk a bit about the continuous dust monitor and the problem we ran into. And yesterday there was some frustration about, gee, we're not going to wait another two years. Well, the truth of the matter is, when we finished up the last rulemaking in 2000, there was a number of us in Labor and industry and NIOSH that got together and said we're going to fix this problem. We sought financial help and assistance every place we could. We sought support every place we could to build this device that's in the back room. There was a number of reasons for the delay that we don't have that today. And I can tell you, and I along with some of the industry, was highly upset when we found out as we agreed in the meeting with all the principals to put all that money that we had available on developing the PDM-1 to get it built, there was a decision made to pull the money off the PDM-1 and let's build this PDM-2 device that's totally separated from this unit that miners can't wear as a secondary unit. I was furious when I heard that. Now there's this, well, we had to build the PDM-1 to get the PDM-2. No, we didn't. People thought that and wanted to do that. That delayed this whole process. It's very frustrating. The technical glitches that slowed things down -- this thing was suppose to be ready in January in terms of getting them into the mines. The reason it's not there today had nothing to do with the sampling technology. It had everything to do with when the manufacturer put together the device, he didn't put enough battery capacity in the darn thing to do what we'd asked and instructed them to do. So they had to take the thing back and put more battery capability in it. We've redesigned using battery technology to get us where we're at, but that was an error on the part of the manufacturer. We're frustrated over that. It should have been there, but we're stuck. There's been glitches along the road that have been the mistakes of man, not the failure of the system to do what it was designed to do. And it's just totally frustrating to find ourselves here today not having that device finished, which we should have. And I think people need to recognize that and I think we need to examine what went wrong here and why this thing was delayed. The frustrating part as well was we were having all these meetings, briefing -- the industry knew what was going on. NIOSH knew what was going on and the mine workers knew what was going on about the closeness and the accuracy of this unit and it's a little bit troubling the kind of vibes that I see coming back from MSHA with regard to the reluctance to embrace this as a tool to fix this and jump on board with us to get it done. Whether it's real or not, that's the impression you guys are leaving and I need to let you know that. And the simple thing like leaving the thing in the back room today, no, we needed to get it up here where miners could see it. There's a lot of miners that never saw that. Don't understand what the capability of it is. Not only what NIOSH said, but at the end of the day we can electronically download that data straight off that continuous monitoring to you Marvin, to MSHA. I mean, think of that, instant information that miners never had before, the capability of providing MSHA with all this information, but most important, it empowers miners and I think that's what scares everybody. We can't let those miners get that in their hands and know what dust they're in. I'm appalled by anybody who thinks like that. I'm hopeful that, that's not the thinking there. I'm not saying it is, but I know they're some in the industry that think that way. Those mines that were charged with criminal conduct that cheated the system intentionally don't want to see those on those coal miners. We've got to put them there. We've got to fix system. With regard to yesterday, I noticed that there was some dismay from the reaction of the miners that was at the hearing over our response to the proposal. And I want to clear the air on that in terms of why miners are angry about what you're doing. I want you to understand it clearly. You know, there's a historical record that was built over years. And as I pointed out, in 1976 miners came up with this idea of continuously monitoring their shift days, weeks, all the way through with continuous dust monitors because they knew back then that's the way we fix this thing. We're going to document what's really going on in here. In 1980, the government promised miners in the closing days of the dust reforms that they would build that system, work to get it built. We're going to do the research to get these continuous dust monitors in the mines. Miners believed that. I believe it. I was back in those days. What's happened since is, in a way, a history of frustration. But during the years, miners have made that one of their front claims undeniably what they've wanted to fix this problem is a primary way to fix the plan verification system, to fix this system of over exposure between sampling days. And in this case, we built this thing to last 12 hours, so we can do full shift sampling up to 12 hours and fix problems like that. We had the NIOSH criteria document that was issued in 1995. It made a number of recommendations. Those recommendations were consistent with what miners were saying, lowering the dust levels in coal mines and NIOSH's recommendations was down to 1 milligram for cubic meter over taking into consideration the extended shifts and the extended work weeks. There's a number of other recommendations, too, to beef up the sampling program. In 1996 the Secretary of Labor appointed an advisory committee charged with the specific job of set down, come up with a regulatory game plan to fix this problem. I was fortunate to serve on that committee. You had industry on it. You had Labor on it and all these independents. In 1996 they gave a report to your agency, saying here's the road map for reform. That road map for reform said MSHA you take over the program. That you increase both the numbers and frequency of that sampling. They said MSHA you come up with standards to lower the dust levels in the coal mines. They said MSHA get this research done on these continuous monitors and let's get it in there so we can look at a few plan verifications and even compliance sampling. They said increase the miners' participation. They're they ones that's getting harmed from what's going on out here. Give them a big role in this whole process to make sure this is done honest because we have a history of dishonesty in the sampling program in this country. So we have this and a lot of other information and the miners testified at those public hearings on the dust advisory committee. We had this proposal launched in 2000. And this proposal was as wrongheaded as what this proposal is for a number of reasons. It reduced sampling. It failed to take into consideration a meaningful compliance sampling. It allowed the increase of dust levels in coal mines. It failed to address the full shift sampling. And like NIOSH and MSHA have both said in their findings, don't increase the dust levels. Don't adjust them upwards in favor of the mine operator. When it comes to making that determination of compliance, don't make it in their favor. Put it in the favor of the miners at least. It should be adjusted downward, I think, was the findings of NIOSH, which is something we support. There's a number of things that was in the record that was laid out by coal miners in 2000. They came from all over the country, give us continuous monitors, lower the dust levels, increase the sampling, sample the full shift, have the standard, don't let them exceed this 2 milligram by goofy formulas and stuff and let's get this program fixed. When we read the March 6th proposal, I can tell you this, if you guys didn't think there would be total disappointment in our eyes, I don't know what your expectations were because it decreased sampling, in our opinion, even more clearly from what the law was. It increased the dust levels in coal mines substantially more. And I just want to stop there and just lay out what was in the 2003 rule. There was a goofy proposal to allow mine operators of longwalls to put these faulty airstream helmets on these miners, inject the dust levels up -- I think it was 4 milligrams on longwalls. Miners railed against that. You know, that's illegal. We don't want it. The proposal we came back out says, well, here's what we're going to do for you miners in response to what all our concerns were. We're not going to just put this on longwalls. We're going to let operators use this all over the mines. And oh, by the way, yeah, that 4 milligram that was wrong. We're going to jack it up to double to eight. You don't think miners was upset about that? Four shift sampling -- we don't have four shift sampling in this rule. No upward adjustment of the dust levels during compliance in favor of the operator. Don't do that. The rule does that. Miner participation -- if miners want to take money out of their own pocket and lose work and go sit on a plan verification sample, it's done. That's outrageous. I mean, does anybody here -- do you take off work if there's a conference some where, tell the government keep my money. I'm going to go do this on my own. You shouldn't expect miners to do that. And we have a provision under the law that this agency was stiff enough to get that standard in place to make these operators pay for these miners participation. They deserve it. You know, we're looking at an industry that has killed tens of thousands of miners from choking on Black Lung or from coal dust that gives them Black Lung and other diseases. That's outrageous. And what we say to those miners is, here's what we're going to do for you fellows, and you did make some modest improvements in that rule, which we agree. We agree with single sample. We don't agree with adjusting that upwards. That's wrong for the miners. We agree with getting rid of this averaging. It should have been done a long time ago, but you don't place these little tiny, tiny, meek proposals that doesn't give you the full measure to protect the miners that they need. Infrequent sampling, some mines down to three compliance samples on a section a year. And under this rule, I should point out, you've got at the outline sampling, because under the current rules, miners have a guarantee of -- what is it, six times a year they're going to get sampling. Under this rule, those outline miners got one sample for the whole year. We're going to base the exposure of miners on one sample a year in these coal mines. I just didn't like that. They said do more, you did less. You look across the board, and there's a lot of other proposals in there that miners have demanded for years that is just not, as President Roberts, their findings has been the findings of NIOSH. It's been the findings of the advisory committee I sat on that this agency, for whatever reason, refuses to accept and stays wedded in this failed system we just can't get out of. But this continuous dust monitor, how did we wind up here getting into a quick rule, rushed in the middle of all these actions, all the other rulemaking, how did we get here and say we don't care about this final date -- finalization on this PDM-1 that NIOSH, a good government agency, has worked hard to get, supported by the operators, supported by the union labor. It's sad. So if you can't understand why we're frustrated. Why we're upset and we're angry about what's come out here, I think you fail to understand the reality of life. I don't we could have laid out a clearer record in 2000 and I don't think there could have been a clearer decision made with the rules we say that we have not listened to you coal miners and we're not going to listen to you. Now getting back to the PDM-1, with this optional plan. I mean, does anybody in their right mind really thought that they operators were going to jump on this and put this in the coal mines? I mean, if you do, I worry. They said it. I had a meeting with the BCUA shortly after the rules came out, and I got into a discussion with their top safety guy from Peabody Coal Company. And he says to me something to the effect, Joe, who in their right mind would ever put one of these things in a coal mine under these rules, nobody. That was our estimation, too. Compared with what the operator had to say yesterday, John Gallick. That's the problem we have. I mean, it's sort of like a little bit of a fraud here that gives the public the impression that we're going to have these continuous dust monitors in these coal mines by this rule and we're not. I mean, that's the difficulty we're having here. I could go on for the rest of the day. I've got to get off of here, but I'm just frustrated that what's happening here is that miners are not getting the truth about this rule. They're not getting the full measure of what could happen to them. There are miners sitting in this room that may well see one of these days a plan approved at their mine that has the dust levels at 8 milligrams with some kind of a PAPR on, and if the government treats it the same way they have over the last three years of letting it be not approved, not in an approved stage, they're in big trouble. It violates the law and it violates the rights that these miners have. We're going to be putting in the record a large number of documents over the course of this hearing. We're learning as we hear what you guys are saying about this rule, and we're finding a lot of these complex that give us great problems and we plan to fully make sure, at least the record, because I see this thing at the courthouse. It is without question, if the thinking doesn't change here and this rule is not withdrawn and recrafted to do what a lot of people have said, beyond coal miners, the practice around continuous monitoring, full shift sampling, getting those dust levels in the mine environment down, not legalizing what some operators want to do to jack them up, we're in trouble. The coal miners are in trouble. It's heading straight to the courthouse. But these kind of things you have to understand. I mean, this lack of trust in this agency. When those same fellows who were at those hearing in 2000, knew what was on there and what the expectations were of you guys coming back, saw what they saw, I can tell you your credibility went down big time. There's no other way to explain it and for those reasons. They laid a clear case of what needed to be done. You either didn't do it or you did the opposite. That's wrong. That's wrong for the nation's coal miners. And I'm again urging that you go back to the leadership of this agency and pass a message on from the mine workers, pass the message on that Cecil Roberts gave today, this rule needs to be withdrawn and recrafted to really help the nation's coal miners and it should not be done to make all these favor changes to take care of operator interest because that's exactly what it does. You chose a side. You need to rethink that really quick and decide which side you're on here. Increasing the dust levels for mine operators to legitimize them and reduce sampling to take care of all of the cain they've raised about getting you guys out of the mines or do what's right for the miners, get that dust in those mines lowered, get constant monitoring in these coal mines and help these coal miners out because they're the ones that are getting sick. It's not the corporate guy sitting in the 18 Massey office down here that's getting sick with Black Lung. It's not the folks up there working on that rule that's getting sick with Black Lung. It's these guys behind me that's getting sick with Black Lung and it's high time this government understands that and does something on their behalf. Thank you very much. (Applause.) MR. NICHOLS: Thank you, Joe. You want to pass me that Courier Journal article? MR. MAIN: Yes, we're going to have a number of other documents. Oh, one other document introduced on Tuesday, the April 17th letter that went to Dave Lauriski. I sent that officially. I understand it was on the website. It was posted on the website with comments. I've had a number of calls asking where it went. I understand that you guys pulled that off the website. MR. NICHOLS: We did. It went up prematurely. We put it in the record, but it accidently got on the website. MR. MAIN: Accidently? I thought comments that goes in on the record went on the website. Is it selective? I know the agency was not happy with what was said in that letter. MR. NICHOLS: No, that's not right, Joe. No, I mean, there was some consideration in response to your letter. And we thought we put it up too quick before that decision was made. MR. MAIN: Well, the points raised in the letter was comments, whether you agreed or disagreed with them and you want to send the letter back. But I'm asking you officially today. MR. NICHOLS: It's in the record. MR. MAIN: I ask you to put that back as a separate posting as it was. MR. NICHOLS: Okay. MR. MAIN: And we'll be checking the website to see if it was because I think people have a right to know. The problem we have, Marvin, is, as I've said, these miners back here, many of them, ain't got a clue about what train about ready to hit them here. We're trying to educate them and you can say whatever you want, too, about what you think it is or don't think it is about what our positions are. But the clear fact is I've used a lot stuff that I've got from your own people. And you know, I want to throw one other thing out here, too, because we've got this discussion. I asked during this meeting what operators is going to get these PAPRs to let this dust go up to 8 milligrams. And I believe the answer was, well, gee, it's going to be the mines in the West probably most likely to be there. And I asked specifically about one mine, which is the Deer Creek mine, which I think the answer was, yeah, that's close to about 400 cfm of air and that's one of the mines that maybe on that list. You know, this is stuff that's troubling. We had this advantage and I'm really bothered about the defensiveness of this rule and the lack of explanation that this is something that's really going to happen out there and can happen. You've eliminated the bars. It's going to be your decisionmaking now. It's whether we trust you guys to make the right decisions under this rule. That's what it boils down to. You're saying you're not going to do it. And you know, Marvin, you're not going to be there to make those decisions. Nobody on this panel is going to be there to make those decisions and they way that this happens in this government policy shifts like a leaf in wind storm and we know that. And there is no comfort at all that we can expect that there would be a 2 milligram standard in effect in coal mines in a mine environment after this rule is passed. You guys know it and we know it, just be a little bit more forthcoming about it. MR. NICHOLS: Okay, thank you, Joe. Here's what the rest of the day looks like. We have still, by my best count 42 people signed up to give comments. And we want to hear from everybody we can, so the lunch plans are, you know, if you want to grab something for lunch, you can do it. But the panel will work straight through lunch and we'll keep going on the commenters. Our next presenter is Bolts Willis with the MWA. MR. WILLIS: Thank you, Mr. Chairman. My name is William Bolts Willis, W-I-L-L-I-I-A-M B-O-L-T-S W-I-L-L-I-S, Box 126, Pratt, West Virginia 25162. I'm president and chairman of the Mine Health and Safety Committee for Local Union 8843 located in Carrolton, West Virginia, the largest local union of the United Mine Workers. We have a couple of distinctions that our Carrolton operations. We have been there for over 100 years in continuous operations. We had the first longwall mine section in the United States of America. We had the first mountaintop removal mine in the State of West Virginia. And we're still operating today and producing more coal with less people than every, I think, or anyone else could have imagined 10 to 15 years ago. Some of you on the panel know me and have known me for many years, either as I was working for the UMW International Safety Division and also for the State of West Virginia as an assistant commissioner of the Department of Energy. At our local union, we have two underground mines. One four section mine, one tunnel mine, one strip mine and a large preparation plant complex. As I've stated earlier, some of you know me personally. So I will address you as my contemporaries as so you are. In 1969 I started working underground at the No. 8 mine in Carrolton and worked at several of her other mines at the same general location since we have the common seniority system where I work. I worked in low coal, 28 inches, medium coal 40 inches and high coal up to 12 feet as well as working on the surface. I've worked on conventional sections, Wilcox sections, Dennis Myer (phonetic) miners sections and longwall sections. In all these areas a common factor is present, coal dust and rock dust. We're hear today to respond to these proposed rules to protect miners from excessive coal mine dust. I must say from reading this proposed rule, it has been difficult to understand what is really being proposed. All 100 pages written, not to what I learned at the mine academy over 20 years ago from many of who you know as an instructor at the mine academy named Wayne Meiswell, who taught creative writing. He taught me to keep it clear and concise. This rule is not clear to me, and I'm sure it's not clear to the rank and file miners. It's muddy to say the least in many instances. I also must say as an adjunct instructor at West Virginia University of Technology, my students would probably have problems understanding what these rules say and how they are written and at what level they're written for comprehension. Many in this room doesn't have a college education and that's not down any coal miners because coal miners are the smartest people in the world. It's complicated to understand and I think probably most everyone here would agree with that. I will just give a few examples. If I were to enhance dust control measures the first place I would look at would be sampling intensely since the sampling devices to monitor coal dust are available and have been for the last 20 years. I'm one of the original people that commented on this on the mini-ram and the ram 20 years ago at the mine academy. I commented on this two years ago at another hearing. This type of sampling could shut off the machinery immediately when high concentrations of dust are detected. Stop, period right then until corrective actions have been taken. We wouldn't have to worry about hiring hundreds of inspectors. We wouldn't have to worry coal companies going through the frustrations of trying to figure out where and when to control the dust. It would be apparent where it was happening at real time, and I'm sure Bob Thaxton would appreciate that. And probably you could really see it as I have seen in testing some of these devices for several years ago. Also, I would take over the program fully. That's not to take away the responsibility, of course, of the operators. As some has stated already in this proposal, it seems to be saying they will be only sampling a few times a year. We need to be sampled more times a year. A couple of fellows just left this room that are younger than me, they're both Part-90 miners. One graduated from high school with me. They went over to the rally that we're having at the Capitol a little later in the day. If I were the operator, I could come up with a system six times a year to where I wouldn't have any coal dust. I don't know of any time at our operation when an MSHA inspector has been on the section taking a sample that we've ever been out of compliance, not one time. There's things done differently when MSHA inspectors are on the section and we appreciate MSHA for being our protector. But when rules come out like this, it's hard to understand, and from my personal opinion, we're going to be exposed to more coal dust. I'm just going to say a few words about some of the problems that I've seen in the reading of the regulations. I think you should hold up the regulations immediately until the PDM-1 is -- my understanding from NIOSH earlier in the meeting, it will be ready in September. I think it should it be held up. I think that's what we need and I think it's the route we need to go. We don't need to go to where it's putting a burden on the operators, putting a burden on the miners of how everything that's done. It's a system that's workable. And I've closely looked at full shift sampling is the answer. As President Roberts and Joe stated earlier, at our mines we're working 9-hour shifts, not 8-hour shifts. And it needs to be sampled for the full shift. Sometimes we also have people come in early now and are working 10-hour shifts on production. I asked several MSHA inspectors in the past two weeks when I heard about this hearing coming up, had they read these rules. Not one of those MSHA inspectors had seen the rules. They had read something about it in the papers. If it's held up and is waiting for the Dennis mining place to look at it, I'll pass it down to the field and let some of your experts, and I know everyone on this on this panel is an expert in your field. Let them look at it and see what they think about it. Most of the inspectors in the field are former coal miners, like most people in this room. The problem with dust, from the way I read this rule, there is going to be a lot most dust in the mine, float coal dust. And I'm fearful that there are going to be mine explosions. I think this rule also is in conflict with the Mine Act that protects me or protects coal miners. And don't think Congress meant it to be that way. I'm sure that wasn't the intention from MSHA, but my understanding that there were some surveys done by Dave Lauriski and I've known Dave for over 20 years and the surveys were done out west when he was working for Utah Power and Light, or one of the other companies he was for, and that was some of the basis of where these rule comes from. I'm suspect of that when it comes from the operators instead of from the agencies. Of course, I understand that Dave is the head of the agency now, but to use surveys that just the operators did to come up with these conclusions in this rule I think it's wrong and suspect. Technology will stop the very moment that the PAPRs are used or the helmets. Technology will stop at that time. Joe alluded to that just a minute ago. When you put someone in a helmet that's cumbersome, the filtering system is suspect -- everybody says, well, that's secure. They're not being exposed to dust then. I think most of us know here that they will be. I'm not concerned about citations that MSHA writes on dust. My concern is to stop the dust. And we're know on a real time basis where it is, we can do something immediately about it. That's where it needs to be. I've thought over it for over 20 years, and I gave testimony 20 years ago about that. Some of you are familiar with the ram and the mini-ram. I know Bob is. I've sat in Bob's office. We've had the mini-ram there talking and I took it in to coal miners. We can see it right then, but it didn't have all the protective devices that the new one does and it's even more protection to the miners. So with that, that's basically all I have to say. I'm still kind of baffled by this long rule and I believe it's in conflict with the Act. MR. NICHOLS: Thanks, Bolt. MR. WILLIS: Thank you. (Applause.) MR. NICHOLS: The next presenter will be Donnie Lowe of the UMWA. MR. LOWE: Thank you, Marvin. My name is Donnie Lowe. It's D-O-N-N-I-E L-O-W-E. I'm a coal miner from Virginia. I started out representing coal miners in 1975 up to 1987 as president of the local and safety committee. From 1987 to 1999, I served as a field rep and district president in Virginia, part of Kentucky and Tennessee representing miners. Since 1999, I'm back at the mines representing miners as local unit safety committee and I walk around with MSHA inspectors when they come to the mines to do their inspections and also, do their dust sampling. Basically, I feel like that MSHA new respirable dust sample rules are against the Act, the same as Cecil Roberts, Joe Main and other that spoke before me. I feel like the advisory committee and NIOSH dust sample reform that they come up with is for continuous monitoring. MSHA's control on sampling, take them away from the coal companies where we have seen fraud. When I was, like I said, at the time district president, you know, the fraud wasn't limited to non-union companies. This fraud was going on at union companies and companies that represented in Virginia and Kentucky. We feel like, you know, the advisory committee I feel like a lot of their recommendations was to maintain or lower the dust level below 2 milligrams of respirable dust. You know, as we've heard other people talk about the extended shifts in the coal industry right now. That's true. We've heard of 10-, 12-hour shifts, but I'm here to tell you that the shifts is even longer at the Island Creek mines that I work at. It's nothing unusual for a coal miner to work two shifts, and I'm talking 8-hour shifts. They only employ enough coal miners under the perfect circumstances to perform the jobs that needs to be performed in the coal mines. But sometimes people get sick. Sometimes people get injured and sometimes people are off for personal reasons. When this happens, then either the job is not done or people work overtime to get the jobs done in the coal mines. That's the reality in the coal mines today. Let's look at this. Coal miners have been samples and samples have come in less than 2 milligram of dust. At times the coal float dust is so heavy that it has basically impaired the vision in certain areas. In other words, we have been taught by NIOSH, MSHA that we basically can't go and look at an area and tell you whether it's in compliance or not. That, that area has to be sampled to see if it will go out. If we're going to raise the level above 2.0, to possible and thought maybe four times up to 8.0, but after listening to Joe Main testify here today, that level could be even as high as -- I believe the figure was 9.33? If we look at that, in my opinion as a coal miner, I think that we probably have developed maybe an atomic bomb that could remove basically mountain tops in Buchanan County, the county that I work in, in Virginia. I work in one of the gaseous mines in the United States, the VP No. 8 mines, two Island Creek mines that's cut together that has an extended area that has to be maintained. You know, we the situation that's going on in Iraq today, you know, whether we went over there and we basically said that we're going to go against any country or anybody that develops bombs for mass destruction. But yet, we want to go into our coal mines and develop an area that will increase the float dust, and we know what float dust that is suspended to the mine air when you have an explosion or a mine form what it can cost. You know, at the VP No. 8 mines, we seen a mine fire here recently. A mine fire that happened on a belt line. It started at a takeout. It started after the belts was empty of coal. It started when the people that were in that location had left to go to the surface and the CO monitoring had picked up high CO readings. From one side of the mine, people could not even get to that location. From the other side of the mine, people could get to it but had no communication back to the surface. We seen a situation that we had fire resistant belt that we had, I believe, something like about 18 breaks a belt that was burnt out. Every timber that was there was burnt to a crisp. I mean, actually ashes on the floor. Every crib was burned up, high voltage installation was burnt off the high voltage cable, nothing but copper left there and not a piece of belt from the takeup all the way to the tail piece, caught another belt drive and turn and burn out. You know, what would we have done in that situation, and you know, the mine rescue teams and the foreman at the VP 8 mine was able to extinguish the fire and basically, save the miners. But what -- could we even imagine what may have happened if we were allowed at that point in time to have had 9.33 milligrams of respirable dust in this area? How much more dust could have been in the atmosphere and what extent this fire could have been in this mine? I'm only using that as an example. You know, if we ignore the Act, ignore Congress, ignore safety and lives of coal miners, we're probably no better than Hussien who ignored or thought nothing of lives of the people in Iraq. You know, using the mechanical main and airstream helmets, basically, could cause other health problems. We might overlook them a little bit, too. The coal companies want miners to share these helmets with co-workers. And this went on. You don't see any mines that each individual has brought a separate helmet. And what experience that I've had with these helmets, maintaining these helmets is almost non-existent. But even looking at the health problems, even somebody just like Joe Main a while ago with a cold, how many people do you think may have had to wear a helmet after Joe Main got up here with his cold. It could cause some health problems. You know, there's health problems with AIDS, SARS and who know what else. We could be causing some more health problems with this in wearing helmets. Basically, at times the helmets, it is hard to breathe. At times, your visibility is impaired. You know, working on a longwall there is a lot of dust, a lot of water, a lot of sprays, a lot of things like that, that the miner basically encounters each and every trip across the longwall. And any type of mechanical device will malfunction and to allow the standards to go above 2 milligrams, knowing that something may malfunction -- and you know, there are certain people, and let's be honest, no matter what controls you may put in place, they may not comply with those controls, the helmets. How many people is going to comply with that helmet to a certain extent? If it blocks their vision, if it cracks, if it malfunctions, the filter stops or whatever, are they going to shut that longwall down in time enough for that shear operator to go and get another helmet or whatever or are they going to keep running it? My experience in the coal mines is they will keep running it. You know, it's just like we hear people talk about Black Lung and we've seen your little chart on how Black Lung is basically decreased over the years. You know, I don't where the figures or what the figures that you're using to determine that level. I don't know if you're getting the people that's actually receiving the monetary benefits or the people that's receiving the health benefits from Black Lung. If that's what you're using, then I think that you're, again, misrepresenting the people that actually have problems with respirable dust in the coal mines. It's my understanding that to receive benefits now, you've to be what, totally disabled from Black Lung? You know, if you've got a heart problem or a bad back, even though you've got bad lungs, you might not get those benefits. But you still got that problem with breathing. You know, we can try a little experiment right